Who Let the Supreme Court Make Laws?

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Yet another big Supreme Court finale this June underscored the court’s supreme and arbitrary power today. Cartoonists aptly sketch the supersized Supreme Court as dwarfing President Barack Obama. Whatever you think of the Court’s gay marriage or health care decisions, one thing is clear: this is not the shy, retiring court America’s Framers imagined. We have come a long way from Andrew Jackson’s popular but probably apocryphal response to the Chief Justice’s defiant decision invalidating a state law in Worcester v. Georgia (1832): “John Marshall has made his decision; now let him enforce it!”

Knowing that they, like the Pope, lack an army, and that nine sages appointed for life constitute America’s least democratic branch of government, Supreme Court justices traditionally operated with “judicial restraint.” The Supremes picked cases sparingly and decided cautiously, deferring to the popular will as expressed by state legislatures, the Congress, and the president. The Constitution does not explicitly allow judicial review—declaring executive and legislative acts unconstitutional. When Chief Justice John Marshall established judicial review in Marbury v. Madison(1803), he asserted the power theoretically. Only in 1810 in Fletcher v. Peck did the Supreme Court first strike down a state law.

The Court next overstepped during the Progressive era, when judicial conservatives repeatedly nixed popular legislation protecting workers against corporations. In the infamous Lochner v. New York¸ the Court prevented New York’s legislature from limiting bakers’ working hours to 10 hours per day or 60 hours per week. Such laws constituted “meddlesome interferences with the rights of the individual,” the Court proclaimed, violating the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty or property without due process of law.” Subsequently, when denouncing “Lochnerism,” liberals rejected an overzealous Court wielding this “due process” clause to protect corporations, who were considered “persons.”

During the Great Depression, Franklin Roosevelt’s liberal welfare state-ism intensified tensions between ever-bigger government and the conservative court’s 14th Amendment-based restrictiveness. Cries to “trust the people” and override judicial restraint led to Roosevelt’s attempt to reorganize the federal judiciary in his favor. Liberals disdained the “nine old men” with lifetime jobs, trusting the presidency, the Congress, the state legislatures, to expand government.

But the timely conversion of a once-conservative judge who suddenly became the swing vote making for 5-to-4 votes in favor of New Deal laws stilled calls to quash the Court. (This was called the “switch in time that saved nine.”)

Although desegregation became broadly accepted, the Warren’s court judicial activism sparked conservatives’ calls for “judicial restraint.” While there is something deliciously democratic about nine judges interpreting a 228-year-old document to protect minority rights in a free nation, that same document empowers just five justices to revolutionize life for more than 300 million Americans, by, for example, detecting a Constitutional right to privacy in the “penumbra” emitting from the First, Third, Fourth, and Fifth Amendments. That privacy penumbra became the basis of Roe v. Wade (1973), the divisive pro-choice decision, guaranteeing decades of abortion fights that might have been avoided if the more populist states or the Congress had decided.

In today’s partisan, fickle times, both conservatives and liberals champion judicial restraint—when convenient. Predictably, after the Reagan Revolution, a conservative court became more activist to undo some Warren Court decisions and advance Republican interests. In 2000, a Reagan-boosted majority narrowly decided that the Florida State Supreme Court could not authorize another extended recount, essentially making George W. Bush president in Bush v. Gore. Justice John Paul Stevens dissented, blasting this “federal assault on the Florida election procedures,” and declared, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Similarly, a recent New York Times editorial complained that, too frequently, today’s “conservative majority has changed the law to disfavor the less powerful.” Breaking his promise of “judicial restraint above all else,” Chief Justice Roberts’s court “has been far too willing to undermine or discard longstanding precedent,” complained the Times. Naturally, such distaste for judicial activism did not stop the Times from declaring the recent Obergefell v. Hodges decision “A Profound Ruling” that “Delivers Justice on Gay Marriage.”

Once again, conservatives repudiated judicial activism. In his 29-page Obergefell dissent, Chief Justice John Roberts mentioned Lochner16 times. Recalling how justices used to “elevate their own policy judgments to the status of constitutionally protected liberty,” Roberts charged: “Today, the majority … revives the grave errors of that period.” Indeed, five pro-gay marriage judges read new guarantees of “dignity” into the penumbral rights of privacy, invoking historians’ understanding of how marriage developed rather than social scientific experiments testing girls and their dolls.

Wherever you stand on the legitimacy of Bush’s presidency or gay marriage, champions of democracy should stop championing judicial fiat over democratic decision-making. Shouldn’t the Congress and the president have boldly passed a law or constitutional amendment authorizing gay marriage? It is unfortunate that gay marriage entered into legal legitimacy though the slippery Supreme Court backdoor rather than through the more democratic, populist front door.

Or to put it another way: If, in 1965, the Supremes sang, “Stop! In The Name Of Love,” the justices should occasionally say to themselves “Stop legislating! In the name of law.”